Anserphone, Inc.

Anserphone, Inc. and Beverly Miller. Case 8-CA- 11122 June 15, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 17, 1978, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Anserphone, Inc., Youngstown, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT create the impression that we have engaged in surveillance of our employees' union or protected concerted activities. WE WILL NOT ask our employees for copies of ANSERPHONE, INC. statements given by them to the National Labor Relations Board or interrogate them about other information relating to pending unfair labor practice charges without observing proper safe- guards so as to guarantee that we shall not inter- fere with their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL NOT discharge or otherwise discrimi- nate against our employees in regard to their hire, tenure, or any other term or condition of their employment because they become mem- bers of or engage in activities on behalf of City Workers Association or any other labor organi- zation. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities spec- ified in Section 7 of the Act. These activities in- clude the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. WE WILL offer Beverly Miller immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges and WE WILL make her whole for any loss of earnings she may have suf- fered as a result of the discrimination against her, plus interest. ANSERPHONE. INC. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON. Administrative Law Judge: The charge in this case was filed on June 27, 1977, and the complaint issued on July 28, 1977. The complaint alleged that Respondent discriminatorily reduced the hours of Beverly Miller on February 9, 1977, and discharged her on February 10, 1977, because of her union and concerted activities in violation of Section 8(a)(3) and (I) of the Act. At the hearing, the General Counsel was permitted to amend the complaint to allege in addition that Respondent by its supervisor, Delores Schlabaugh, created the impres- sion of surveillance of employee union activities and through its agent, Ray Kinnison, interrogated employees concerning their union and concerted activities and their testimony to be given in this case. In its answer Respon- dent denies the commission of any unfair labor practices. A hearing was held before me in Youngstown, Ohio, on November 28-29, 1977. At the conclusion of the hearing Respondent argued orally, and the General Counsel and Respondent have filed post-hearing briefs. 236 NLRB No. 112 931 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case including my obser- vation of the witnesses and their demeanor I make the fol- lowing: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent operates a telephone answering service for commercial customers in Youngstown, Ohio. It annually provides services valued in excess of $50,000 for other en- terprises, which themselves have annual direct inflow in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert juris- diction in this case. 11 THE LABOR ORGANIZATION City Workers Association is an affiliate of Ohio Public Employees Union. It is an organization in which employ- ees participate and which exists for the purpose of negoti- ating collective-bargaining agreements and representing employees with respect to their wages, hours, and condi- tions of employment. I find that City Workers Association is a labor organization within the meaning of the Act. Iit. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts I. Beverly Miller's employment Respondent employs approximately 20 telephone sec- retaries, who work on shifts answering telephones and tak- ing messages for its customers. They work at a switchboard which has five adjacent positions, each of which accommo- dates 100 lines. Each line is identified with a strip showing customer's name and coded instructions for answering. From each position, the lines at adjacent positions may also be answered, and the secretaries are expected to help one another at busy times. When a supervisor is present she usually sits directly behind the telephone secretaries. Beverly Miller first started to work for Respondent in January 1973, and was discharged in April 1973. A month or two later in response to a newspaper advertisement she again applied for a job and was rehired by Respondent. Miller worked for I month on the midnight shift and then moved to the afternoon shift on which she usually worked for the remainder of her employment. When Miller started, there was a day supervisor and an evening supervisor. In 1974, the evening supervisor gave up that job, and Respondent's manager, Warner, promoted Miller to evening supervisor. In that capacity she worked on the switchboard and supervised three other employees who worked evenings. After 2 months, she gave up the supervisor's job and returned to the job of telephone secre- tary because she had received no increase in pay. After Miller gave up the supervisor's job, Marge Wil- liams, day supervisor, was transferred to nights, and De- lores Schlabaugh became day supervisor. In September 1976, Williams left Respondent, and no supervisor was designated to replace her during the evening hours. At that time, Respondent designated the most senior telephone secretary on the evening shift as senior operator. The se- nior operator made certain that the other telephone secre- taries got their messages out, that alarm systems monitored by Respondent were in order, and that the evening ran smoothly. The senior operator worked from 3 to II p.m. Schlabaugh usually left at 4 or 4:30 p.m., and Warner usu- ally left at 5 p.m. 2. Union activity and Respondent's response On January 27, 1977,1 employee Sara Gossett 2 arranged a meeting at a restaurant between Don Hanni, a represen- tative of City Workers Association, and some of Respon- dent's employees to discuss their interest in getting union representation. In order to attend the meeting, Miller told Supervisor Schlabaugh that she had to leave early that night to go to her sister's house. Schlabaugh scheduled her to leave work at 9 p.m., and Miller went to the meeting. At the meeting, Hanni talked with the employees about the appropriate union to represent them and said that on their behalf he would contact the Communications Work- ers of America, which had previously not shown much in- terest in Respondent's employees. Hanni also said that if that union was not interested in representing Respondent's employees City Workers Association would be. After the January 27 meeting, Hanni spoke with a Com- munications Workers representative, and at his direction telephoned Respondent's manager, Warner, to tell him that the union was interested in representing Respondent's em- ployees and was attempting to organize them.3 On January 31, Miller worked on the day shift. During the day, Schlabaugh remarked to her that Schlabaugh knew what was going on and why Miller had left early on the previous Thursday. Miller made no response.4 During the week starting January 31, Miller and other telephone secretaries talked about holding another meeting at an employee's home, and they decided to use Miller's house because it was centrally located. Some of their dis- cussion took place at the switchboard while Schlabaugh was in the room. On Thursday, February 3, a second union organizing meeting was held at Miller's house shortly after 11 p.m., when Miller finished work that night. After Warner received Hanni's phone call and before February 9, Respondent handed out two leaflets to each of its employees and mailed a letter to them. One of the leaf- lets described the consequences of certification of the pub- lic employees union at an area credit bureau where there had been a strike, arrests, and permanent replacement of 18 employees. The leaflet concluded "Ours is a small com- pany, quite similar to the Credit Bureau in size and opera- tion. I believe you should have the hard facts when consid- ' Dates which follow are in 1977 unless other indicated. 2 Gossett, a part-time employee of Respondent. was a full-time municipal employee and a member of City Workers Association. The date of this call is not establshed, but it is clear that the call was made before February 9. It is not clear whether Hanni mentioned the name of the union involved. ' Miller so testified without contradiction. 932 ANSERPHONE, INC. ering signing up with the union." The second leaflet urged employees not to be stampeded into signing authorization cards and requested that employees ask themselves a num- ber of questions about the Union and its reasons for orga- nizing the Company before signing up. The letter dated February 7 stated the employer's oppo- sition to the Union and its view of what the Union could do to its employees. Among other things, it stated, "We neither want a union nor do we need one. We are con- vinced that the union will not be in your best interest, and could be a disaster." The letter concluded, "In your own best interest, I urge you to stay with us in resisting this attempt of these outsiders to invade our office. You can be assured that we will resist this union by every legal and moral means available to us." 3. Miller's discharge On February 9, Miller worked the evening shift, and Schlabaugh was also present and worked for most of the evening shift. During the evening, Schlabaugh observed Miller reading a magazine and writing a letter while seated at the switchboard. Miller put the magazine on top of the switchboard. Schlabuagh asked Miller if the magazine was hers Miller said that it was not, and Schlabaugh picked up the magazine and took it to the employees' lounge. Schla- baugh said nothing else to Miller about it.5 Somewhat later in the evening, Margaret Greene was working at the first position on the switchboard, Miller was at the third position, and Barbara Mackey was at the fourth position. Schlabaugh's headset was plugged into the fifth position but she was also replacing identifying strips on the board at the fourth and fifth positions. Schlabaugh asked Miller about her health, and in the course of ensuing conversation Miller mentioned that she had a doctor's ap- pointment at I p.m. the following Monday for which she would need to leave work early. Schlabaugh said that she could leave and mentioned that she happened to have scheduled Miller to work from 7 a.m. to 2 p.m. that day instead of from 7 a.m. to 3 p.m. when Miller usually worked on Mondays. Miller asserted that Schlabaugh had cut her hours and asked her why she had done so while Respondent was still hiring employees. Miller also wanted to know if the 7 a.m. to 2 p.m. schedule was going to be- come standard procedure and challenged Schlabaugh's right to reduce her workweek. Schlabaugh observed that it was all right if Miller cut her own hours to go to "the meeting" but that when Schlabaugh cut them it was differ- ent. Miller said that she would not argue with Schlabaugh and that Schlabaugh could do whatever she wanted with her schedule, and the discussion ended. During the discus- sion both Miller and Schlabaugh had raised their voices, causing some disturbance to Mackey who was seated be- tween them. 6 The conversation between Miller and Schla- 5 Schlabaugh so testified without contradiction. 6These findings are based on a composite of the testimony of Miller. Schlabaugh, Greene, and Mackey. Schlabaugh did not deny that she re- ferred to the meeting during the conversation, and indeed the only confhlct of substance between the various versions concerns whether or not Miller raised her voice during the incident. Miller testified that the conversation was not carried on in loud voices and that she used the same tone of voice baugh lasted no more than 10 minutes.7 The next morning Schlabaugh told Manager Wainer that she had had problems with Miller in the switchboard room the previous evening. According to Warner, Schla- baugh told him that Miller had been carrying on, that they had gotten into an argument over Miller's hours and her reading and writing while on duty, that they had yelled back and forth, and that Miller used profanity. Warner testified that Schlabaugh told him that the incident upset the others who were working and made it difficult for them to hear and that that sort of thing could not be tolerated in the switchboard room. According to Schlabaugh, she told Warner that she and Miller had had words, that it had gotten very loud, that it was intolerable, that Miller disrupted the work of the others, and that Schlabaugh could not take much more of it. Schlabaugh testified that she mentioned that earlier in the evening Miller had been reading a magazine and writ- ing a letter but she did not mention the use of profanity by Miller then or at any other time. Warner asked Schlabaugh whether she could cover the switchboard for the day if he terminated Miller and she replied affirmatively. At or about 2 p.m. that afternoon before Miller was scheduled to start work Warner called her at home and told her that he was letting her go. She asked for the reason and Warner replied that it was because she was dissatisfied with her hours. Miller disputed his statement, and Warner then said, "Well there has been other trouble down here, and I am letting you go." Warner gave no further reason.8 During that same day while Mary Vance was working at the switchboard, she and Schlabaugh had a conversation in which Schlabaugh mentioned that Miller was discharged for complaining about her working hours. Schlabaugh also said that Miller had asked to be off 2 hours early once to attend a meeting and added, "I knew you guys were going to a meeting." 9 Several days later Schlabaugh discussed Miller's dis- charge with employee Marilyn Houy. Schlabaugh said that it was a shame that Miller was let go because she was a good operator. Hlouy agreed. and Schlabaugh then said that she was aware that the employees were going to meet- ings because she had heard some of them whispering one night when she had stayed late and was working in the outer office. 10 that she used in testifnng (reene testified that the conversation was "not that loud." that she continued to take calls while Miller and Schlahaugh talked. and that their consersltlion did not interfere Aith her work Schla- haugh testified that Mlle ', ice became quite loud as it did whenever she got "riled up" and that it caused the other trai girls at the switchboard Io lower their heads in order to hear incoming calls Mackey testified that both Miller's and Schlahaugh's oicces were raised but they were not yelling. and that the combination olf Miller and Schiahaugh made It difficult for her to hear incoming calls. I conclude from the tlestimons lf (ireene and Macke?. both of whom were still employed, that during the consersation both Miller and Schlabaugh raised their voices abuse normal levels causing some inter- ference to Mackey who was closest to them but not to Greene 7 Only Mackes ,was asked to estimate Its length She testified that it was "not that long" and did not exceed It) minutes Both she and Greene look calls while Miller and Schlah;ugh were talking. and the cinversallon was interrupted once while Miller trook a caii. ! Miller's testimon) as to this consersation was unconlradicled 9 Vance sto testified without cointradiction "' Ilousy s testified without contradiction 933 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The questioning of employees by Respondent's investigator On Friday, February 25, 3 days before the start of the hearing in this case, Ray Kinnison, an investigator em- ployed by Respondent's attorney came to Respondent's of- fice to interview Marilyn Houy and Barbara Mackey whose names had been given to him as possible witnesses by Respondent's attorney. At Respondent's office, Kinni- son spoke to Schlabaugh and learned that Margaret Greene had been present on the evening of February 9 and decided to interview her also. Kinnison used Warner's office and asked Schlabaugh to send the employees in one at a time. Neither Warner nor Schlabaugh were present during the interviews. Kinnison introduced himself and explained that his firm was repre- senting Respondent in the unfair labor practice proceeding involving Beverly Miller and that he wished to question them as to their knowledge of the February 9 incident and the reason for Miller's discharge. Kinnison asked about Miller's union activities but did not ask about the activities of the three employees he questioned or the names of other employees who were active. After questioning the employ- ees he asked each of them for a written statement. Greene refused to give one but Houy and Mackey gave him writ- ten statements. In addition, Kinnison asked Mackey if he could see a copy of the statement she gave to a Board agent during the investigation of the case, and Mackey gave it to him. Kinnison did not tell any of the employees that their participation was voluntary or that they were free to leave the office if they did not wish to speak with him. Kinnison also gave no assurances that no reprisals would be taken against the employees." B. Concluding Findings 1. The discharge of Beverly Miller The General Counsel contends that Beverly Miller was discharged because of her union and protected concerted activities. Respondent contends that Miller was discharged for cause and not for unlawful reasons. Respondent also contends that Miller was a supervisor within the meaning of the Act and, therefore, not protected against discharge for union or protected concerted activities. Respondent's supervisory contention is based on the fact that Miller usually served as senior operator on the second shift. While the evidence establishes that when Miller served as senior operator she was left in charge and was responsible for the completion of work during her shift, it does not establish that she had any authority to supervise J' It is undisputed that Kinnison gave no such assurances to Houy and Mackey although both testified that Kinnison was courteous to them and that they did not feel that their jobs were threatened. Kinnison testified that he did assure Greene that nothing would happen to her when she displayed nervousness and expressed concern over whether she would lose her job. Greene denied that Kissison gave her any assurance against reprisals. I have credited Greene who was still employed at the time of the hearing and who refused to give a written statement despite the alleged assurances. I con- clude that whatever Kinnison said it was not perceived by Greene as an assurance against any reprisals. or direct the work of others who were on duty during the evening hours. She trained new employees and was asked her opinion of them by Schlabaugh, but she made no rec- ommendations as to their status. While no other supervisor was present for much of the evening shift, Schlabaugh was usually present for the first hour or hour and a half and Warner was usually present for the first 2 hours of the evening shift. There were only four or five employees pres- ent for the entire evening shift. In these circumstances, I conclude that Miller was not a supervisor within the mean- ing of the Act. Turning to the discharge, an initial question to be an- swered is whether Respondent had knowledge of Miller's union activities. It is conceded that Respondent was aware generally of employee union activities before Miller's dis- charge, 2 and Respondent had conveyed to them its oppo- sition to their representation. Although Respondent denies that it knew of the union activities of Miller or any other individual employee, the evidence warrants the inference that Respondent had such knowledge. Thus, on January 31 Schlabaugh told Miller that she knew what was going on and why Miller left early the previous Thursday. During that week, employees talked about the Union while Schla- baugh was nearby and in the February 9 argument with Miller Schlabaugh again referred to Miller's having left early for a meeting. After Miller's discharge Schlabaugh had conversations with two employees in the context of discussing Miller's discharge in which she again indicated her awareness of the meetings. While Schlabaugh did not use the word union in describing the meetings, she neither denied any of the statements about the meeting attributed to her nor testified to any other possible meetings to which her statements might have referred. I find that the evidence warrants the inference that Schlabaugh and, through her, Respondent knew that the employees were holding union meetings, that Miller had requested time off on January 27, so that she could attend such a meeting, and that a second meeting took place at Miller's home. The major issue to be decided is whether the reasons advanced by Respondent for Miller's discharge were pre- textual as the General Counsel contends or were in fact the true reasons for it. When Warner notified Miller of her discharge, he told her that she was discharged because of her dissatisfaction with her hours. When she disputed that, Warner told her merely that there had been other trouble at the office and that he was letting her go. In its answer to the complaint Respondent alleged that Miller was discharged "because of insubordination, disruption of business and inability to get along with co-workers." In a statement given during the investigation of this case with Respondent's counsel pres- ent, Warner stated the following reasons for Miller's dis- charge: "The other girls were actually afraid of Beverly Miller, and as a result we lost two or three perfectly good workers. Finally, on February 9 she was reading a maga- 12 Although there is some confusion as to the identity of the union for which Hanni was speaking when he telephoned Warner before Miller's dis- charge it appears that the employees were interested in representation by either of the two unions for which Hanni spoke and that at the time of Miller's discharge the employees' union activities had not yet crystallized into a campaign for one or the other of them. 934 ANSERPHONE, INC. zine and writing a letter while working, contrary to our basic work rules. She argued loudly with her supervisor, used profanity, and called her co-workers stupid, that was too much and I terminated her." At the hearing Warner testified that the argument brought matters to a head and that he viewed it as insubordination. While some of the differences in these explanations may reflect different ways of saying similar things, analysis of all the evidence relating to these reasons and Miller's past work record persuades me that Respondent has shifted and changed its explanation of the reasons for Miller's discharge since the event and that it did so in the attempt to conceal the true reasons for Miller's discharge. Thus, on the day of her discharge the only specific fur- nished by Warner was Miller's dissatisfaction over her hours. Yet in his later statements that reason is not men- tioned, and the other trouble vaguely referred to by War- ner on February 10 became expanded into several alleged shortcomings extending over the entire course of her em- ployment. The confusion of explanations is compounded by reasons given by Warner at an unemployment compen- sation hearing where in Warner's presence Schlabaugh said Miller was fired because she was complaining about her hours and could not get along with her fellow workers and said nothing about Miller's reading and writing on the job or profanity.' In addition, the evidence indicates that the additional reasons set forth in Warner's statement, causing the loss of two or three employees, reading and writing on the job, and the use of profanity were afterthoughts, added after the discharge and not reasons for Miller's discharge. War- ner could only name one employee who allegedly quit be- cause of Miller and was clearly unfamiliar with the facts relating to this claim. While Schlabaugh named three, one of those named did not quit because of Miller but contin- ued to work after Miller's discharge. The others worked for Respondent and made their complaints to Schlabaugh long before Miller's discharge. Despite their complaints which allegedly centered about Miller's treatment of them during their training periods, Respondent continued to assign Miller to train new employees, made her night-shift super- visor when a vacancy arose, and instituted the senior oper- ator practice on the night shift after she resigned as super- visor. It is incredible that Respondent would have so treated Miller if she was causing good employees to quit. I do not believe that Miller's treatment ot others suddenly became cause for her discharge on February 10. Despite the testimony of Warner and Schlabaugh that reading magazines and writing letters at the switchboard was against company rules and the testimony of Schla- baugh that she invariably reprimanded employees if she saw them engaged in such conduct, current employees tes- tified they engaged in such activities when the switchboard was quiet and that they were only reprimanded for reading 13 Warner's explanation that these reasons were not mentioned because they had been given at a prior hearing which Miller had not attended is not persuasive. Warner conceded that no one had told him that it was unneces- sary to repeat what had been said at the first hearing, that the refereee gave him and Schlabaugh an opportunity to speak, and that he asked if them had anything to add after Miller spoke. or writing if they continued to read or to engage in activi- ties unrelated to work when the switchboard became busy. Schlabaugh's testimony as to her practice is contradicted by her own testimony as to what she did when she saw Miller reading and writing on February 9. She testified that, after seeing Miller place a magazine on top of the switchboard, she picked it up and asked Miller if the maga- zine was hers. When Miller said that it was not, Schla- baugh merely took the magazine back to the lounge and said nothing more to Miller. What Schlabaugh said to Miller at that time can hardly be viewed as expressing dis- approval of Miller's reading and certainly not as a repri- mand. Despite Schlabaugh's failure to reprimand Miller, War- ner testified that Schlabaugh reported that the argument between Miller and Schlabaugh concerned Miller's reading and writing on the job and a reprimand by Schlabaugh to her. Quite clearly Warner's testimony added something to Schlabaugh's report which was not in it. In the light of these considerations and the omission of any mention of this reason in Warner's February 10 conversation with Miller and in Respondent's answer, I conclude that this reason is an afterthought added after Miller's discharge and was not a cause for her discharge." With respect to Miller's use of profanity, Warner's testi- mony is again substantially contradicted by that of Schla- baugh. Although Warner testified that Schlabaugh report- ed that Miller used profanity in their argument on February 9, Schlabaugh and the other witnesses to the ar- gument testified that Miller did not use profanity on this occasion. Moreover, Schlabaugh testified that she never spoke to Warner about Miller's use of profanity. The evi- dence shows that others, including Schlabaugh, occasional- ly used profanity in the switchboard room not directed at customers but after trying conversations. Although Schla- baugh testified she spoke to Miller about her use of profan- ity on one occasion, her own version of that conversation shows that it was not a reprimand but concerned Miller's practice of using profanity in conversations with members of her own family. From all of the above it appears that Miller's use of profanity was not reported to Warner by Schlabaugh and did not become a matter of concern to Respondent until after Miller had been discharged. With the exception of the argument between Schlabaugh and Miller on the night of February 9, the other reasons advanced by Warner for Miller's discharge all concern matters which were well known to Respondent and tolerat- ed over a period of time. While the argument on February 9 unquestionably occurred, its intensity was disputed, and it is clear from Warner's shifting explanations for Miller's discharge that he did not regard the February 9 incident standing alone as sufficient cause for Miller's discharge. I conclude from the shifting nature of Warner's explana- tion for Miller's discharge as well as the insubstantial na- ture of the reasons assigned for it, that the reasons ad- vanced for Miller's discharge were pretextual. I find further that the evidence establishes that the true cause for Miller's discharge was her union and protected concerted activities. 14 I note also that in their testimony in this proceeding neither Warner nor Schlahaugh referred to this alleged cause until their attention was directed to it. 935 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proffer of pretextual explanations for the discharge is itself evidence that Respondent sought to conceal the true cause and did so because the true cause was improper. Beyond that Respondent expressed its opposition to union- ization of its employees in strong terms. While such expres- sion does not itself violate the Act, those expressions of hostility do not stand alone. Schlabaugh made statements to Miller and others indicating awareness of the employee union meetings. As the General Counsel contends, these statements created the impression of surveillance of union activities, 15 and in the case of Vance and Houy referred to the meetings in the context of discussions of Miller's dis- charge, indicating a connection between the meetings and the discharge. Respondent contends that any inference of discrimina- tion is offset by the fact that Sara Gossett, the instigator of the first meeting, was not discharged. Leaving aside Warner's claim that he was unaware of her activities until the hearing in this case, the failure to discharge Gossett does not negate the inference of discrimination against Miller. Miller had taken time off to attend one meeting and had hosted another. These activities occurred within a 2- week period before her discharge, and her argument with Schlabaugh furnished an excuse around which to fashion a case to justify her discharge. That Respondent chose not to discharge all leaders in the organizing effort does not ne- gate the inference of discrimination against Miller. I find in all the circumstances that Miller was discharged not for the reasons asserted by Respondent but because of her union and protected concerted activities and that her discharge therefore violated Section 8(a)(3) and (I) of the Act. I find further that Supervisor Schlabaugh made state- ments to Miller, Vance, and Houy which created the im- pression that Respondent was engaging in surveillance of employees' union activities in violation of Section 8(a)(1) of the Act. 2. The alleged interrogation by Respondent's investigator, Ray Kinnison The General Counsel contends that Kinnison failed to observe appropriate safeguards in questioning Greene, Houy, and Mackey, relying on Johnnie's Poultry Co. and John Bishop Poultrv Co., Successor, 146 NLRB 770 (1964), enforcement denied 344 F.2d 617 (C.A. 8, 1965). Respon- dent contends that it was entitled to interview employees to ascertain information as long as its interviews did not go beyond the necessities of trial preparation, and relies on United Merchants and Manufacturers Inc., 223 NLRB 689 (1976), and Winn-Dixie Stores, 341 F.2d 750 (C.A. 6, 1965), as supporting the lawfulness of Kinnison's conduct. While the Administrative Law Judge's Decision in United Merchants and Manufacturers, supra, appears to modify the requirements of Johnnie's Poultry, supra, in adopting his Decision in that case the Board noted that it did so proforma in the absence of exceptions to his finding that interrogation in that case did not violate the Act. 6 'I Respondent correctly contends that there is no evidence that Respon- dent engaged in surveillance of union activities. but the impression of sur- veillance may be created without actual surveillance having occurred. Nothing in the Board's Decision or the court's decision in Winn-Dixie, supra, supports the conclusion that observance of the safeguards set forth in Johnnie's Poultry, supra, is no longer required. An employer may ascertain facts neces- sary to its defense from employees if among other things it assures them that no reprisals will take place and obtains their participation on a voluntary basis. Here it is clear from Kinnison's testimony as well as that of the employees that he did not satisfy these conditions. Moreover, as Winn-Dixie holds, Kinnison's request for a copy of Mackey's affidavit was also improper. I find under the cir- cumstances that the interrogation of employees by Kinni- son and his request to Mackey for a copy of the affidavit which she gave to the Board violated Section 8(a)(l) of the Act.'7 IV. THE REMEDY Having found that Respondent engaged in unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent unlawfully discharged Beverly Miller, I shall recommend that Respondent be or- dered to offer her immediate and full reinstatement to her former job or if that job no longer exists to a substantially equivalent position without prejudice to her seniority or other rights and privileges and to make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by payment to her of the amount she normally would have earned from the date of her discharge until the date of Respondent's offer of rein- statement less net earnings to which shall be added interest to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (197 7).iS Upon the basis of the above findings of fact and the entire record in this case I make the following: CONCLUSIONS OF LAW I. Anserphone, Inc., is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. City Workers Association is a labor organization within the meaning of Section 2(5) of the Act. 3. By creating the impression that Respondent engaged in surveillance of employees' union and concerted activi- ties, by interrogating employees concerning matters relat- ing to a pending unfair labor practice case without observ- ing necessary safeguards, and by asking for copies of statements given by employees to the Board, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. By discharging Beverly Miller because of her union and protected concerted activities Respondent has engaged 16 223 NLRB, supra at fn. I. '7 See also Tamper Inc., 207 NLRB 907 (1973), enfd. 522 F.2d 781 (C.A. 4, 1975). 18 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 936 ANSERPHONE, INC. in unfair labor practices within the meaning of Section 8(a)(1) affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 The Respondent, Anserphone, Inc., Youngstown, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating the impression that it has engaged in sur- veillance of employees' union and concerted activities. (b) Asking its employees for copies of statements given by them to the National Labor Relations Board or interro- gating them concerning any other information relating to pending unfair labor practice charges in a manner interfer- ing with their rights guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended. (c) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employment, or any term or condition of employment, because they become members or engage in activities on behalf of City Workers Association or any other labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to engage in or to refrain from engaging in any or all of the activities " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and beconme its findings, conclusions, and Order. and all objections thereto shall he deemed waived for all purposes. specified in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Beverly Miller immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority' or other rights or privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards. personnel records and reports. and all other records rele- vant and necessary to a determination of compliance with paragraph (a), above. (c) Post at its Youngstown. Ohio, place of business cop- ies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered bv any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " In the event that this Order is enforced by a Judgment of a nited States (.ourt of Appeals. the words in the notice reading "Posted bh Order of the Naltonal I abtor R[tlalont, Board" shall read "Posted Pursuant to a Judgment of the t nited State, ('ourl oif &ppeals Enforcing an Order of the N;.rionmal i brhi Relations Board " 937